European Court Vs British Law: Who Wins?

The relationship between EU law and British law has been a source of contention for many years, with some arguing that the UK has been trapped in a legal system it no longer controls. The European Court of Justice (ECJ) interprets and enforces EU law, and its rulings are binding on member states, including the UK, which joined in 1972. The ECJ has ruled that member states cannot adopt national laws that conflict with European law, and while it does not have the power to strike down national laws, this task falls to national courts. The UK Supreme Court has since rewritten the rules on retained EU case law, creating uncertainty for businesses and individuals. The UK's departure from the EU in 2020 has further complicated the situation, with the Court of Justice of the EU (CJEU) retaining jurisdiction over some matters during the transition period and beyond. The role of the EU Court has led to criticism that it creates discrepancies between what voters want and the policies carried out by the UK government.

The European Court of Justice (ECJ) and its role in interpreting EU law

The European Court of Justice (ECJ), officially the Court of Justice and also known as the Court of Justice of the European Union (CJEU), is the supreme court of the European Union in matters of European Union law. It was established in 1952 by the Treaty of Paris (1951) as part of the European Coal and Steel Community. The ECJ is tasked with interpreting and ensuring the uniform application of EU law across all member states under Article 263 of the Treaty of the Functioning of the European Union (TFEU).

The ECJ is composed of one judge per member state, currently 27, although it normally hears cases in panels of three, five or fifteen judges. Each judge serves a renewable term of six years, and the court has been led by President Koen Lenaerts since 2015. The ECJ is the highest court for matters of Union law but not national law. While it can provide interpretations of EU law, it does not have the power to strike down national law—this task falls to the national courts.

The role of the ECJ is to ensure that EU law is interpreted and applied consistently across all EU countries. It settles legal disputes between national governments and EU institutions, and individuals, companies or organisations can take action against an EU institution through the ECJ if they feel their rights have been infringed. The ECJ also deals with requests for preliminary rulings from national courts, certain actions for annulment, and appeals.

The ECJ can hear cases from national courts through the 'preliminary ruling' system, where a national court refers a question on the interpretation of EU law to the ECJ. The ECJ decides on the correct interpretation and sends the case back to the national court for a final decision. National courts are required to ensure that EU law is properly applied, but the ECJ recognises that courts in different countries might interpret EU law differently. If a national court is in doubt about the interpretation or validity of an EU law, it can refer the question to the ECJ.

The UK's relationship with the ECJ post-Brexit

The UK's relationship with the ECJ has been a contentious issue in the Brexit debate. The European Court of Justice (ECJ) is the supreme court of the EU, located in Luxembourg, and it oversees the application and implementation of EU law. The UK's membership in the ECJ was a recurring topic in the run-up to the Brexit referendum, with some arguing that leaving the ECJ's jurisdiction was necessary to regain sovereignty over British laws.

Post-Brexit, the UK is no longer a member state of the EU, and its relationship with the ECJ has changed significantly. The UK has lost its right to appoint judges to the ECJ, and UK courts no longer refer to the ECJ for interpretations of EU law. The European Commission cannot take infringement action against the UK for non-compliance with EU treaties. These changes mean that the UK is no longer subject to the direct jurisdiction of the ECJ.

However, the UK's relationship with the ECJ is not entirely severed. The ECJ still plays an indirect role in the UK's legal system, as the UK continues to be bound by EU laws and standards in certain areas, especially regarding trade. The UK government has chosen to give partial reference to the ECJ, particularly in disputes arising from the Trade and Cooperation Agreement (TCA), which are decided by a three-member arbitration tribunal. Additionally, the "Ukraine Mechanism" in the Withdrawal Agreement (WA) states that a five-member "arbitration tribunal" must request a binding ruling from the ECJ in matters concerning EU law or treaty law.

The status of the ECJ's rulings in UK courts has also evolved post-Brexit. While the UK was a member state, UK courts were bound by the ECJ's rulings on EU law. After Brexit, the European Union (Withdrawal) Bill allows the UK Supreme Court to override ECJ rulings given before Brexit with contrary rulings. For rulings made by the ECJ after Brexit, UK courts are not obligated to follow them but may do so when appropriate.

In summary, while the UK has regained sovereignty over its laws post-Brexit and is no longer under the direct jurisdiction of the ECJ, the ECJ still plays an indirect role in the UK's legal system due to the ongoing influence of EU laws and standards. The UK's relationship with the ECJ post-Brexit is shaped by arbitration mechanisms and the UK's choices regarding the ECJ's rulings.

The supremacy of EU law over UK national law

The principle of the primacy of European Union (EU) law, also known as the 'supremacy principle', establishes the precedence of EU law over conflicting national laws of EU member states. This principle is based on the idea that if a conflict arises between EU law and the law of an EU member state, EU law will prevail. The principle was derived from an interpretation of the European Court of Justice (ECJ), which ruled in 1964 that member states had agreed to limit their sovereign rights in areas covered by EU treaties and could not adopt national laws that were incompatible with European law.

The ECJ is located in Luxembourg and consists of judges from all member states. It oversees the correct application and implementation of EU law. The UK had three judges at the ECJ prior to Brexit, one in the Court of Justice and two in the General Court, which is the lower level court to the ECJ. The UK also had an advocate general in the court, who gives legal opinions on important cases that may be influential but are not binding on the court.

The supremacy principle means that when the domestic law of a member state conflicts with EU law, it is EU law that takes priority. National courts must apply EU law in its entirety and disregard any provision of national law that conflicts with it. This includes provisions found in member states' constitutions and constitutional bills of rights. The principle of primacy seeks to ensure that people are uniformly protected by EU law across all EU territories.

The UK's relationship with the ECJ has been a prominent topic in the run-up to the Brexit referendum. Following Brexit, the UK courts can no longer take cases to the ECJ if there are arguments over how to interpret EU law. The supremacy and direct effect of EU law in the UK's national courts have ended. However, the supremacy principle will continue to operate in relation to legislation enacted prior to Brexit. Thus, any EU-related law to which the supremacy principle applies will take priority over all pre-Brexit domestic law, including pre-Brexit Acts of Parliament.

The UK Supreme Court's role in rewriting retained EU case law

The European Court of Justice (ECJ) is located in Luxembourg and is composed of judges from all member states. The ECJ oversees the application and implementation of EU law. The UK's relationship with the ECJ has been a prominent topic in the wake of Brexit.

The UK Supreme Court has recently rewritten the post-Brexit rules on the application of EU case law in UK courts. The ruling in the Lipton v BA City Flyer Ltd case concerned a claim for compensation for a delayed flight that took place in January 2018, before Brexit. The court found that the captain's sickness, which caused the delay, did not constitute 'extraordinary circumstances' under EU Regulation. The majority of the judgment, however, focused on whether Court of Justice of the European Union (CJEU) case law was binding on the Supreme Court.

At the time of the flight, the UK was an EU member, so EU Regulation was directly applicable in UK law, and CJEU case law was binding on UK courts due to the European Communities Act 1972. However, when Brexit took effect on 31 December 2020, the 1972 Act was repealed, and former EU legislation was incorporated into the UK legal system as 'retained EU law' under the EU (Withdrawal) Act 2018. This raised the question of which law applied to the case: the EU law under the 1972 Act in 2018 or the retained EU law under the 2018 Act in 2024.

The Supreme Court's ruling has implications for legal certainty and may prompt the EU to raise concerns about UK compliance with the 2019 UK-EU Withdrawal Agreement. It also creates legal uncertainty for businesses and individuals, as it suggests that other legislation may be applied retrospectively. The broader implications of this judgment may be felt across the statute book, beyond retained EU law, wherever new legislation relies on the Interpretation Act to prevent the retrospective effect of legal changes.

The status of earlier case law on retained EU law has been complicated by the UK's transition period for withdrawing from the EU. The European Union (Withdrawal) Act 2018, as amended by the European Union (Withdrawal Agreement) Act 2020, states that the Supreme Court and the High Court of Justiciary in criminal matters are not bound by retained EU case law. However, other courts and tribunals must determine issues of retained EU law in accordance with it.

The CJEU's jurisdiction over the UK during the transition period

The Court of Justice of the European Union (CJEU) interprets and ensures the uniform application of EU law across all Member States. The UK left the EU on 31 January 2020, and under the Withdrawal Agreement (WA), nearly all EU law continued to apply in the UK until the end of the transition period on 31 December 2020.

During the transition period, the CJEU's jurisdiction over the UK continued as it did when the UK was an EU Member State. This meant that the CJEU could rule on infringement proceedings under Article 258 of the Treaty on the Functioning of the European Union (TFEU). The CJEU also had the power to give preliminary rulings on requests from UK courts and tribunals made before the end of the transition period, as outlined in Article 86(2) of the WA.

However, the CJEU's general jurisdiction over the UK ended on 1 January 2021, as EU law ceased to be applicable in the UK post-transition. Nevertheless, the CJEU's jurisdiction relating to the UK continued beyond the transition period in certain areas. For instance, the CJEU retained jurisdiction over cases pending before it at the end of the transition period until their finalisation, as per Article 86(1) WA.

Additionally, the CJEU's interpretation and application of the WA remained in force as long as aspects of the agreement, such as citizens' rights, were still in operation. This included the ability for UK courts to send preliminary references to the CJEU about the meaning of any aspect of Part 2 of the WA for eight years after the transition period, ensuring consistent interpretation between the UK and the EU. The CJEU also gained jurisdiction under the WA after the transition period, allowing for the establishment of an arbitration panel to resolve disputes between the UK and the EU regarding the interpretation and application of the WA.

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